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Sex in the city -- and in the workplace
By Jenny
C. McCune • Bankrate.com
Last April, six female employees
charging sexual harassment at Ralph's grocery chain won $30.6 million.
That was the largest court-imposed sexual harassment judgment in
U.S. history -- until the next one comes along.
If you think your company is immune from a sexual
harassment suit just because it's small, think again. Businesses
with 25 or more employees must comply with Section VII of the Civil
Rights Act of 1964, which deems sexual harassment is sexual discrimination
and is therefore illegal.
Breathing easier because you have fewer than 25 workers?
Don't. Many state and local governments have their own ordinances
against sexual harassment and these can apply to firms with as few
as five employees.
And even if there isn't a law on the books, isn't
protecting your employees the ethical thing to do?
Various actions constitute harassment
A small-business owner needs to know exactly what constitutes sexual
harassment or a hostile workplace environment. That isn't always
easy.
Robert Turk, chair of the employment practice
group at the law firm of Gunster
Yoakley in West Palm Beach, Fla., defines sexual harassment
as something of a sexual nature that a reasonable person would find
objectionable in the workplace. That includes everything from just
staring at someone, notes Turk, to actual physical assaults.
"It can include such things as the way people
dress, sexually inappropriate comments, telling dirty jokes, someone
who only yells at women," according to Turk.
What makes for sexual harassment isn't just the content
of the message, such as a calendar with "dirty pictures,"
but the frequency and pervasiveness of the harassment. "It
has to be severe and persuasive," Turk says. "Telling
one dirty joke doesn't cut it."
Sexual harassment, however, doesn't have to be face-to-face.
An employee can harass a co-worker through e-mail or by posting
sexually explicit publications on a company bulletin board, Turk
says. Even office memos could be deemed offensive.
For more information on sexual harassment and a company's
responsibilities, check out:
The same rules apply outside corporate confines. Steven
J. Lorenzet, assistant professor of management and human resources
at Rider University in Lawrenceville, N.J., notes that it can occur
at offsite company events, such as office picnics.
And it's not confined to one gender. A male supervisor
can harass a female subordinate, a male peer can make lewd comments
to a fellow male employee, or a woman boss can offer to promote
an employee in exchange for sexual favors.
Experts divide sexual harassment into two categories:
quid pro quo and hostile workplace.
Quid pro quo is the outright asking for sexual favors
in return for keeping your job or being promoted, says Lynda Ford,
president of The
Ford Group, a management and human resources consulting firm
based in Lee Center, N.Y.
"A hostile work environment occurs when workplace
conduct unreasonably interferes with worker's job performance,"
Ford says. While the courts do make a distinction between the two,
she says the lines are blurring.
Four steps to stem harassment
With a shifting legal landscape, preventing a hostile work environment
is usually a company's best move. Mary N. Wong, president of HRizen
Solutions, an HR consulting firm in Houston, says small companies
can guard against sexual harassment complaints by taking these four
simple steps:
1. Establish
and maintain a written policy against harassment of any kind.
The policy should outline what constitutes sexual harassment, what
reporting process is in place for complaints, ways to investigate
sexual harassment and disciplinary actions that will be taken against
employees found to have sexually harassed a co-worker.
2. Disseminate
the policy to all employees.
All new employees should receive the policy as part of their orientation.
Also document that each employee has received, read and understands
it. That means, for example, that you require workers to sign a
form attesting to their reading the policy. "I've seen a company
with a great policy, but without training no one knew it existed
so it was just a piece of paper," notes Florida attorney Turk.
3. Conduct sexual harassment training at least once a year.
A company's HR staff can conduct the training, but because of the
sensitive nature of such training, Wong says it may make sense to
use a third-party. "An employee might feel uncomfortable explaining
these scenarios to people that they have to go and work with the
next day," Wong says. "We consider using a third-party
to be the smart thing to do."
4. Develop and adhere to a
predefined investigation method.
The investigative procedure should include a reporting process as
well detail consequences and protection issues. Lynda Ford recommends
using a third-party for the investigation of sexual harassment claims.
That will ensure it gets done right. "Most people don't know
how to do an investigation and they should outsource it," says
HR consultant Ford. "It might cost you $2,000, but that's nothing
compared to the thousands, hundreds of thousands and even millions
that a law suit would cost."
Small companies have a responsibility to educate their
workers about sexual harassment, particularly to the extent that
they may find themselves legally liable for the actions of one or
more employees, says Rider University professor Lorenzet.
"If the company has communicated and educated
its workforce regarding sexual harassment, made it clear that it
will not be tolerated and consistently followed its own sexual harassment
policies," notes Lorenzet, "it is taking several positive
steps toward limiting its legal liability."
Don't deny the problem
Ford agrees that it's important for companies, regardless of size,
to show zero tolerance for sexual harassment. In doing so, an employer
demonstrates it is making a good faith effort to curb sexual harassment
in the workplace, the consultant says.
The biggest mistake that small companies make is to
deny there is a need for a sexual harassment policy. "That's
the hardest thing," Turk says. "The small business owner
says 'I'm not like a big business, that's why we're different.'"
But in reality, a small-business owner needs to pay
more attention to the details of a sexual harassment policy. That's
because a smaller workgroup can make it harder for an employee to
complain.
While following these steps won't eliminate
the risk of a lawsuit, they can go a long way to protecting your
employees. And in a worse-case situation, a proactive policy can
help show a court that your company did the right thing when it
came to trying to prevent sexual harassment.
Jenny C. McCune is a contributing
editor based in Montana.
-- Posted: July 26, 2002
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